04/13/2010 05:12 am ET Updated May 25, 2011

American Bar Association Calls for Shorter Detention Terms for Immigrants

When a system is ineffective and no longer functions in the manner initially intended, there are two possible avenues to pursue - either piecemeal, patchwork remedies or radical overhaul. There is no disputing that the immigration system, in its current incarnation, is in dire need of repair. And the American Bar Association is the latest entity to call for comprehensive immigration reform, notably shorter terms of detention for immigrants.

Recently, the American Bar Association (ABA) released a report, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases. Almost 500-pages in length, the report engages in a critical analysis of the immigration removal adjudication system and outlines sixty policy recommendations for systemic reform.

In the report, the American Bar Association identified several problems in the system as they relate to detention and deportation. They are as follows:

  • Policies and procedures within the Department of Homeland Security (DHS) have contributed to a marked increase in the caseload such that immigration courts handle in excess of 280,000 proceedings annually.
  • The grounds for removal of noncitizens based on "aggravated felony" convictions have been significantly expanded; many cases are handled without oversight.
  • Removal proceedings are initiated against noncitizens who are eligible for adjustment of status to lawful permanent resident status.
  • Judicial review of removal orders has not become more efficient; rather it has produced more difficulties for unrepresented noncitizens.
  • More than half of respondents in removal proceedings and 84percent of detained respondents do not have legal representation.

The report then outlined key policy recommendations to address the concerns as they relate to detention and deportation, as follows:

  • Amend the definition of "aggravated felony" since the broadened definition now encompasses persons convicted of misdemeanors and other minor crimes. Eliminate the retroactive application of aggravated felony provisions of the immigration laws given that it is unfair and results in the removal of noncitizens with long standing ties to the United States.
  • Eliminate expedited removal for individuals who are already in the United States, unaccompanied minors and the mentally ill. Expedited removal orders should only be issued in instances when DHS determines that an individual lacks proper travel documentaion.
  • Expedited removal orders should be limited to inviduals at U.S. ports of entry or those observed illegally crossing a border by DHS officers.
  • Restrict the use of detention. This can be done either by detaining only those individuals who pose flight risks or a threat to national security, public safety or other persons. Explore alternatives to detention and expand the use of parole for asylum seekers.

The appeal for reform of detention policies is a recurring theme in the discourse relating to immigration reform. The current population of immigrants in detention is comprised of a cross-section of individuals and/or families seeking political asylum, as well as unaccompanied minors and adults in removal proceedings due to offenses (such as aggravated felony and misdemeanors).

The law allows for an immigrant to be held for a period of time reasonably necessary to bring about his/her removal, while prohibiting indefinite detention. But as immigrants are increasingly detained for prolonged periods of time, there has been a corresponding spike in costs relating to detention. Shorter terms of detention for immigrants as advocated by the ABA, as well as alternatives to detention, are viable options to consider.

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